[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



 
            H.R. 515, THE RADIOACTIVE IMPORT DETERRENCE ACT

=======================================================================

                                HEARING

                               BEFORE THE

                 SUBCOMMITTEE ON ENERGY AND ENVIRONMENT

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 16, 2009

                               __________

                           Serial No. 111-73


      Printed for the use of the Committee on Energy and Commerce

                        energycommerce.house.gov




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                    COMMITTEE ON ENERGY AND COMMERCE

                 HENRY A. WAXMAN, California, Chairman

JOHN D. DINGELL, Michigan            JOE BARTON, Texas
  Chairman Emeritus                    Ranking Member
EDWARD J. MARKEY, Massachusetts      RALPH M. HALL, Texas
RICK BOUCHER, Virginia               FRED UPTON, Michigan
FRANK PALLONE, Jr., New Jersey       CLIFF STEARNS, Florida
BART GORDON, Tennessee               NATHAN DEAL, Georgia
BOBBY L. RUSH, Illinois              ED WHITFIELD, Kentucky
ANNA G. ESHOO, California            JOHN SHIMKUS, Illinois
BART STUPAK, Michigan                JOHN B. SHADEGG, Arizona
ELIOT L. ENGEL, New York             ROY BLUNT, Missouri
GENE GREEN, Texas                    STEVE BUYER, Indiana
DIANA DeGETTE, Colorado              GEORGE RADANOVICH, California
  Vice Chairman                      JOSEPH R. PITTS, Pennsylvania
LOIS CAPPS, California               MARY BONO MACK, California
MICHAEL F. DOYLE, Pennsylvania       GREG WALDEN, Oregon
JANE HARMAN, California              LEE TERRY, Nebraska
TOM ALLEN, Maine                     MIKE ROGERS, Michigan
JANICE D. SCHAKOWSKY, Illinois       SUE WILKINS MYRICK, North Carolina
CHARLES A. GONZALEZ, Texas           JOHN SULLIVAN, Oklahoma
JAY INSLEE, Washington               TIM MURPHY, Pennsylvania
TAMMY BALDWIN, Wisconsin             MICHAEL C. BURGESS, Texas
MIKE ROSS, Arkansas                  MARSHA BLACKBURN, Tennessee
ANTHONY D. WEINER, New York          PHIL GINGREY, Georgia
JIM MATHESON, Utah                   STEVE SCALISE, Louisiana
G.K. BUTTERFIELD, North Carolina
CHARLIE MELANCON, Louisiana
JOHN BARROW, Georgia
BARON P. HILL, Indiana
DORIS O. MATSUI, California
DONNA CHRISTENSEN, Virgin Islands
KATHY CASTOR, Florida
JOHN P. SARBANES, Maryland
CHRISTOPHER S. MURPHY, Connecticut
ZACHARY T. SPACE, Ohio
JERRY McNERNEY, California
BETTY SUTTON, Ohio
BRUCE BRALEY, Iowa
PETER WELCH, Vermont

                                  (ii)
                 Subcommittee on Energy and Environment

               EDWARD J. MARKEY, Massachusetts, Chairman
MICHAEL F. DOYLE, Pennsylvania       DENNIS HASTERT, Illinois
G.K. BUTTERFIELD, North Carolina          Ranking Member
CHARLIE MELANCON, Louisiana          RALPH M. HALL, Texas
BARON HILL, Indiana                  FRED UPTON, Michigan
DORIS O. MATSUI, California          ED WHITFIELD, Kentucky
JERRY McNERNEY, California           JOHN SHIMKUS, Illinois
PETER WELCH, Vermont                 HEATHER WILSON, New Mexico
JOHN D. DINGELL, Michigan            JOHN B. SHADEGG, Arizona
RICK BOUCHER, Virginia               CHARLES W. ``CHIP'' PICKERING, 
FRANK PALLONE, New Jersey                Mississippi
ELIOT ENGEL, New York                STEVE BUYER, Indiana
GENE GREEN, Texas                    GREG WALDEN, Oregon
LOIS CAPPS, California               SUE WILKINS MYRICK, North Carolina
JANE HARMAN, California              JOHN SULLIVAN, Oklahoma
CHARLES A. GONZALEZ, Texas           MICHAEL C. BURGESS, Texas
TAMMY BALDWIN, Wisconsin
MIKE ROSS, Arkansas
JIM MATHESON, Utah
JOHN BARROW, Georgia

                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Edward J. Markey, a Representative in Congress from the 
  Commonwealth of Massachussetts, opening statement..............
    Prepared statement...........................................
Hon. Fred Upton, a Representative in Congress from the State of 
  Michigan, opening statement....................................
Hon. Jim Matheson, a Representative in Congress from the State of 
  Utah, opening statement........................................
    Prepared statement...........................................
Hon. Bart Gordon, a Representative in Congress from the State of 
  Tennessee, prepared statement..................................
Hon. Ed Whitfield, a Representative in Congress from the 
  Commonwealth of Kentucky, opening statement....................

                               Witnesses

Margaret M. Doane, Director, Office of International Programs, 
  U.S. Nuclear Regulatory Commission.............................
    Prepared statement...........................................
    Answers to submitted questions...............................
Leonard C. Slosky, Executive Director, Rocky Mountain Low-Level 
  Waste Board....................................................
    Prepared statement...........................................
    Answers to submitted questions...............................
Val Christensen, President, EnergysSolutions.....................
    Prepared statement...........................................
    Answers to submitted questions...............................

                           Submitted Material

Discussion Draft H.R. 515........................................
Nuclear agreements between the United States and Italy, submitted 
  by Mr. Upton...................................................
Court ruling of EnergySolutions LLC, submitted by Mr. Upton......


            H.R. 515, THE RADIOACTIVE IMPORT DETERRENCE ACT

                        FRIDAY, OCTOBER 16, 2009

                  House of Representatives,
            Subcommittee on Energy and Environment,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 9:35 a.m., in 
Room 2123, Rayburn House Office Building, Hon. Edward J. Markey 
[chairman of the subcommittee] presiding.
    Present: Representatives Markey, Matheson, and Upton.
    Also Present: Representative Gordon.
    Staff Present: Jeff Baran, Counsel; Melissa Bez, 
Professional Staff Member; Caitlin Haberman, Special Assistant; 
David Kohn, Press Secretary; Earley Green, Chief Clerk; Matt 
Eisenberg, Staff Assistant; Mary Neumayr, Minority Counsel; 
Aaron Cutler, Minority Counsel; Andrea Spring, Minority 
Professional Staff Member; and Sam Costello, Minority 
Legislative Analyst.

OPENING STATEMENT OF HON. EDWARD J. MARKEY, A REPRESENTATIVE IN 
        CONGRESS FROM THE COMMONWEALTH OF MASSACHUSETTS

    Mr. Markey. The Subcommittee on Energy and the Environment 
will come to order.
    There are many Italian imports that I would welcome to U.S. 
soil: Lasagna, great. Ferrari, absolutely. Prosciutto, 
delicious. And let's not forget Prada, Versace, and Giorgio 
Armani. But Italian nuclear waste makes me say, Mama mia.
    H.R. 515, the Radioactive Import Deterrence Act, was 
drafted in response to the proposed importation of 20,000 tons 
of Italian low-level radioactive waste into the United States 
to be processed in Tennessee and disposed of in Utah.
    [The discussion draft follows:]******** INSERT 1-1 ********
    Mr. Markey. Introduced by Congressmen Gordon, Terry, and 
Matheson, along with many other members of the Energy and 
Commerce Committee, this bipartisan bill would prevent the 
importation of low-level radioactive waste into this country.
    The State of Utah, along with the Northwest Compact of 
which Utah is a member, said, no, we won't take the Italian 
waste. Today, a case is making its way through the courts to 
determine whether the States and the compacts have the right to 
say ``no'' to other countries' radioactive waste.
    I have worked on low-level radioactive waste issues for 
many years. I was on the committee in 1980 when we established 
the compact system to deal with the issue. And in 1985, when I 
chaired the Subcommittee on Energy, long ago and far away, we 
passed the amendments to the Act to both consent to a number of 
compacts and to ensure that States without disposal sites would 
be able to access those critical facilities.
    Let me state very clearly that when we established the 
compact system we did so to ensure that low-level waste in this 
country would be able to be safely disposed of. In order to 
encourage new disposal facilities to be established, we allowed 
the States to enter into compacts to dispose of their waste 
regionally, and we further granted them authority to exclude 
waste from places outside of their respective compacts. The 
purpose of the compact system was to empower the States and not 
the compacts. But today some argue that the compacts do not 
have the authority to say ``no'' to waste from other countries.
    To me, from a plain-language reading of the statute and the 
legislative history, this position is obviously incorrect. We 
did not intend for foreign waste to be allowed special 
privileges to be disposed of within the compacts even against 
the wishes of the compacts and the States.
    The compact system, the result of a painstaking compromise, 
has provided access for critical low-level radioactive waste 
disposal for almost three decades. Today, I am very concerned 
that the compact system itself is under assault. I disagree 
with those who argue that this bill is antinuclear. In fact, 
this bill would actually preserve waste disposal capacity for 
domestic use.
    Careful stewardship of our U.S. nuclear waste disposal 
capacity is more important than ever. In this context, it is 
important to examine the current state of low-level waste 
disposal in other countries. Do other countries allow 
importation and disposal of waste from, say, the United States? 
The answer, no. Not Germany, not Canada, not Switzerland, and, 
no, not Italy either. Not a one. No other nuclear waste-
generating country allows low-level waste importation for 
disposal. In fact, many countries with nuclear programs do not 
even have disposal facilities for their own low-level waste. 
That includes Italy.
    If the U.S. remains the one country that allows for the 
disposal of foreign waste, then nothing stops those other 
countries from using us as their nuclear dumping grounds. If we 
do not protect the low-level waste compact system, what were 
supposed to be the disposal sites for U.S. waste could be 
turned into global nuclear waste dumps. We could end up in a 
position where many States are unable or unwilling to 
participate in these compacts at all and companies could have 
nowhere to go to dispose of their radioactive waste. That would 
not be a good development for the nuclear industry or for the 
Nation.
    [The prepared statement of Mr. Markey follows:]******** 
COMMITTEE INSERT ********
    Mr. Markey. Now I would like to turn and recognize my good 
friend, the gentleman from Michigan, Mr. Upton, for an opening 
statement.

   OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Upton. Well, thank you, Mr. Chairman.
    Before I begin, I would like to put into the record two 
statements, the nuclear agreements that were signed just this 
month between Department of Energy Secretary Chu and the 
Italian Minister for Economic Development.
    Mr. Markey. Without objection, so ordered.
    [The information appears at the conclusion of the 
hearing]******** COMMITTEE INSERT ********
    Mr. Upton. It seems to me that any movement on the bill 
that we are looking at today would violate the spirit of those 
agreements, and I would like to submit that court ruling from 
the case EnergySolutions for Northwest Interstate Compact, and 
I thank you for allowing that to be entered into the record.
    [The information appears at the conclusion of the 
hearing.]******** COMMITTEE INSERT ********
    Mr. Upton. As a strong supporter of nuclear power, I hope 
today's hearing on importing low-level nuclear waste will lead 
to discussing the larger issues of long-term storage of spent 
nuclear fuel or nuclear fuel recycling as a whole. The issue of 
waste disposal in the new nuclear power plants are, in fact, 
directly related.
    I see the bill that we are looking at today is anti nuclear 
power. This bill some would view as a political NIMBY issue.
    Direct from the NRC's written testimony: ``The regulatory 
authorities in both Tennessee and Utah have informed the NRC 
that the material can safely go to EnergySolutions' facilities 
in their respective States. The Southeast Compact Commission 
expressed no objection to this application. The executive 
branch expressed no objection to the application and provided 
the NRC with the Italian Government's views that the 
application is consistent with the joint convention 
obligations.''
    Also from the NRC: ``There appears to be ample available 
disposal capacity for the foreseeable future, particularly at 
the EnergySolutions facility in Utah.''
    So why are we debating the bill? Well, a court has made a 
ruling, and the Appeals Court is reviewing the case. 
EnergySolutions has voluntarily agreed to limit the disposal of 
foreign-generated waste to no more than 5 percent of its 
licensed capacity or 10 years, whichever comes first. This is 
just 4.3 acres on a 640-acre site. And EnergySolutions has 
offered to make this a legally binding condition of its 
license.
    Congress should not be interfering here. We should, 
instead, have hearings on building new nuclear power plants, 
recycling spent fuel, and what happens now that the 
administration has scrapped Yucca Mountain.
    While I have great respect for my friends on the other side 
who introduced this legislation, I am concerned that it will be 
used by the opponents of nuclear power to delay new plants from 
coming online, causing further roadblocks to the recycling and 
safe disposal of spent fuel and low-level waste.
    The bill is a continuation of the attacks on the nuclear 
industry. The first attack was on the disposal of spent fuel at 
Yucca. This bill is attacking the safe disposal of a small 
amount of low-level waste and is being used by those who would 
like to stop nuclear energy to attack the disposal of domestic-
generated depleted uranium, or DU.
    NRC has stated that the disposal of DU is safe. If we can't 
dispose of DU, then we can't enrich uranium for fuel. If we 
don't have the fuel, then we are unable to power the source of 
70 percent of our Nation's zero-emission electricity 
generation.
    Sponsors of the bill may not believe that it is 
antinuclear, but the antinuclear groups attempt to stop nuclear 
energy by attacking the waste, not the generation. Despite what 
the proponents of the legislation may claim, this isn't just 
about importing waste from Italy, what happens to be identical 
to the domestic waste safely being processed and disposed of 
today. This is the camel's nose under the tent, and that is 
shutting down all of our domestic processing and disposal 
capabilities and eventually mothballing all of our zero-
emissions nuclear power plants.
    Low-level radioactive material from nearly 104 domestic 
nuclear sites is sent to the Bear Creek facility for processing 
and on to the Clive facility in Utah for its safe disposal. We 
cannot compete on a global scale if we shut down our domestic 
facilities.
    Members of this very subcommittee represent 18 different 
States that send waste to be processed and disposed of by 
EnergySolutions at their facilities. I have two nuclear power 
plants in my district, literally miles from my doorstep, that 
send their low-level nuclear waste across State lines for 
processing and disposal. These services are essential to the 
success of nuclear power.
    Now I know that there are some concerns about importing 
Italian waste to the Clive, Utah, site and how it will impact 
the compact system. I don't believe that it will. The compact 
system remains unaffected. The court has already unequivocally 
ruled on the issue, and I expect that the Appeals Court will 
affirm the ruling. We should let the process move forward.
    The judge's ruling in EnergySolutions v. Northwest stated 
that the Clive facility is not a regional disposal facility and 
not part of the Northwest Compact. Two quotes are important. 
Under the 1980 Act, Northwest would have no authority to 
exclude out-of-region waste from the Clive facility; and the 
second quote, the Clive facility is not a regional disposal 
facility as defined by the 85 'Act.
    It is imperative that clean, safe nuclear power is at the 
forefront as we seek to solidify our Nation's energy supply and 
foster a new era of energy independence and reduced emissions. 
As applications for nearly 30 new nuclear plants are expected 
over the next couple of years, we are on our way to fulfilling 
our commitment to safe, clean nuclear power. Not only will our 
environment be better off for it, our national security will 
also be bolstered. Millions of households are powered by clean, 
zero-emission nuclear power, and our Nation's economy will be 
powered by nuclear as well. This is the right course, and we 
will be better for it.
    I yield back the balance of my time.
    Mr. Markey. The gentleman's time has expired.
    The Chair recognizes the gentleman from Utah, Mr. Matheson.

  OPENING STATEMENT OF HON. JIM MATHESON, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF UTAH

    Mr. Matheson. Well, thank you, Chairman Markey, for holding 
this hearing.
    As the committee knows, I have been working on this 
bipartisan legislation with my friends, Bart Gordon of 
Tennessee and Lee Terry of Nebraska, for the past 2 years. The 
subcommittee held a similar legislative hearing last year, and 
it was clear to those of us who attended that hearing that the 
policy for low-level radioactive waste in this country, as 
created by the Federal Government in the legislation in 1980 
and 1985, has some gaps, and there are some questions, and 
Congress ought to relook at this policy, and that is why we are 
here today.
    I would say that it is hard to see why the U.S. would ever 
want to import radioactive waste from other countries. Simply 
put, we have very few locations in this country where this 
waste can go.
    Given the fact--and I agree with Mr. Upton--that we are 
facing a future with an additional amount of nuclear power in 
this country--and I support the creation of new nuclear power 
plants--it seems to me as we focus on carbon-free energy 
sources and nuclear power seems to grow in the U.S. Over the 
next few years that we would want to preserve the U.S. capacity 
for low-level radioactive waste.
    Some have said this is an antinuclear bill, and nothing 
could be further from the truth, that this is a pro-domestic 
nuclear power bill. I challenge anyone to show me in this 
legislation what is going to inhibit the development of 
domestic nuclear power. So I want to get that on the record 
right away in this opening statement, because that just isn't 
the case.
    Now, as we said, the compact system, which oversees the 
low-level radioactive waste, Utah's part of what is called the 
Northwest Compact, the compact says that while the Clive 
facility is authorized to take waste from outside compact 
States, the compact also said it had never considered or viewed 
the issue of adopting an arrangement that would provide low-
level radioactive waste generated in foreign countries access 
to the region for disposal at the EnergySolutions facility in 
Clive, Utah.
    As illustrated in the testimony of Mr. Slosky from the 
Rocky Mountain Compact, when EnergySolutions applied to the NRC 
for an import license for waste from Canada--because we have 
had some waste come into this country, some small amounts in 
the past--it was listed as only needing to be processed at the 
Bear Creek facility. In fact, the waste was processed, then it 
was redesignated as U.S. waste, and it was openly stored in 
Utah without the knowledge of the Northwest Compact or without 
the knowledge of the State of Utah.
    So we can talk about some foreign waste that has coming in 
and stayed here. The compact and the State didn't even know it 
happened, and those were all pretty small amounts. Now we are 
talking about a lot and greater volume of radioactive waste.
    You will hear some discussion in the hearing today about do 
we have enough capacity in this country. You will hear 
reference to a GAO study from 2004. We talked about this in the 
hearing last year. They took one data point and projected it 
out from there. It happened to be a low year.
    You know, when I was a first-year MBA student, a professor 
tricked all of us with a case where he had us take some data, 
and we projected it out. Then he pointed out the other data, 
and we all learned a good lesson. The GAO made that same first-
year MBA mistake. I hope we don't when we look at the amount of 
capacity that we have got.
    Again, I don't see a lot of other States lining to create 
new sites to take this waste. In last year's hearing, 
EnergySolutions just randomly came to the agreement to self-
limit foreign waste to a storage capacity of 5 percent. But, at 
the same time, in the testimony from the company today, they 
are suggesting they want to increase the license capacity of 
the site when just 2 years ago they voluntarily said to our 
Governor, we won't apply for an application to increase our 
site. So these voluntary commitments may not have a lot of 
meaning.
    Mr. Chairman, I know my time has expired. I have a written 
statement that I would like to submit for the record. I do 
thank you for the hearing, and I look forward to the questions.
    [The prepared statement of Mr. Matheson follows:]******** 
COMMITTEE INSERT ********
    Mr. Markey. We thank the gentleman very much. His time has 
expired, and perhaps he could give the name of that professor 
so that we could send him over to the Congressional Budget 
Office so that they could have his insight as to how long-term 
projections are made.
    By unanimous consent, I would request that the gentleman 
from Tennessee, who is cosponsor of the legislation with Mr. 
Matheson, Mr. Gordon, be allowed to participate in this hearing 
and to be recognized for making an opening statement.
    Without objection, so ordered.
    The gentleman is recognized for an opening statement.

  OPENING STATEMENT OF HON. BART GORDON, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF TENNESSEE

    Mr. Gordon. Thank you, Mr. Chairman, for that request and 
also thank you for having this hearing today.
    When the Nuclear Power Waste Policy Act and the low-level 
waste policy amendments were passed in the 1980s, the United 
States was facing a critical problem: Where were we going to 
put low-level radioactive waste generated by our own nuclear 
power plants?
    We established a compact system under which the States in 
each compact would be responsible for establishing disposal 
sites and taking care of their own waste. As the legislative 
history clearly shows, a witness from the NRC testified in a 
hearing before this subcommittee last year, no one anticipated 
that other countries would try to dump their radioactive waste 
in the United States.
    The NRC stated when it drafted regulations allowing the 
importation of nuclear waste that it did not anticipate--and I 
quote--appreciable U.S. import or export traffic in low-level 
radioactive waste. And that was true for more than a decade 
until EnergySolutions applied for the NRC license in 2007 to 
import 20,000 tons of low-level radioactive waste from Italy 
for treatment in Tennessee and disposal at the site in Utah. 
Italy does not have a disposal site, nor has it been successful 
in obtaining public approval for a future site.
    Italy is the not the only country that doesn't have a waste 
site or enough capacity for its waste. Britain is running out 
of room and looking for places to put its waste. Germany, 
Canada, Belgium, Switzerland, Mexico, and Denmark don't have 
sites either.
    If I were a public official in Italy or Britain, I would 
jump at the chance to send my low-level waste to the United 
States and be rid of the responsibility. But no one can claim 
that this is in the best interest of the United States to take 
on decades of responsibility for another country's nuclear 
waste and also taking away the incentive for those countries to 
do the responsible thing by providing storage for their own 
waste. So we should ask why the United States needs Italy's 
waste, which has been safely stored on site for over 20 years 
and can safely be stored for another 20 years or more or the 
waste of any other country when EnergySolutions plans overseas 
disposal sites.
    As it now stands, the NRC is powerless to prevent foreign 
import of waste even as space for our domestic waste dwindles. 
It is clear that only a legislative prohibition will stop the 
wholesale importation of foreign nuclear waste into the United 
States. The RID Act provides the prohibition, while allowing 
the President to make exceptions if it is in the national 
interest.
    The United States is the only country in the world that 
allows imports and disposals of low-level radioactive waste 
from other countries. The fact is, we have limited space for 
this kind of waste; and it should be reserved for domestic 
industries that generate it--medical facilities, universities, 
research labs, and utilities.
    There are 36 States with no other alternative but to ship 
their waste to Utah. Michigan, Texas, and 34 other States have 
no other place. That is what the RID Act will do.
    By banning the importation of radioactive waste for 
disposal, we also send the world the right message. If you are 
going to produce low-level radioactive waste, you are going to 
have to build the necessary facility to dispose of it.
    And, finally, with all due respect to my friend from 
Michigan, this is not an anti-nuclear waste bill by any means. 
It is a pro-domestic nuclear industry. Michigan, as you pointed 
out, those two facilities near you, if the facility in Utah 
runs out of capacity, there will be no place for them to send 
their waste.
    Thank you, Mr. Chairman.
    Mr. Markey. I thank the gentleman.
    The gentleman's time has expired.
    We will now turn to our witnesses.

     STATEMENTS OF MARGARET M. DOANE, DIRECTOR, OFFICE OF 
  INTERNATIONAL PROGRAMS, U.S. NUCLEAR REGULATORY COMMISSION; 
LEONARD C. SLOSKY, EXECUTIVE DIRECTOR, ROCKY MOUNTAIN LOW-LEVEL 
  WASTE BOARD; AND VAL CHRISTENSEN, PRESIDENT, ENERGYSOLUTIONS

    Mr. Markey. Our first witness is Margaret Doane, the 
Director of the Office of International Programs at the Nuclear 
Regulatory Commission. This office provides overall 
coordination for the NRC's international activities.
    Ms. Doane, whenever you are ready, please begin.

                 STATEMENT OF MARGARET M. DOANE

    Ms. Doane. Good morning, Mr. Chairman and members of the 
subcommittee.
    My office is responsible for reviewing import and export 
license applications and issuing licenses pursuant to the NRC's 
import and export licensing regulations. My focus today will be 
on the NRC's regulatory framework for licensing the import of 
low-level radioactive waste. I would like to thank you for 
providing the NRC with the opportunity today to discuss our 
import licensing process.
    As requested, we provide prepared testimony for the record 
that describes in detail the NRC's regulatory framework for 
licensing the import of low-level radioactive waste. At this 
time, I will highlight key elements of that testimony.
    The NRC reviews import and export license applications 
against the criteria defined in its regulations. Specifically, 
the NRC bases its licensing actions on the following three 
criteria: One, the proposed import will not be inimical to 
common defense and security; the import will not constitute an 
unreasonable risk to public health and safety; and an 
appropriate facility has agreed to accept the waste for 
management and disposal.
    The NRC has exclusive jurisdiction within the United States 
for granting or denying licenses to import foreign radioactive 
waste. The NRC determines whether to issue an import license 
for radioactive waste based on its own health and safety and 
common defense and security evaluation.
    The NRC's evaluation is formed after consulting with the 
executive branch through the Department of State, the 
applicable host State, and the applicable low-level radioactive 
waste compact and consideration of public comments. The NRC 
consults with the applicable host State regulatory officials 
for their health and safety views on the proposed import and to 
confirm that the proposed import of radioactive waste is 
consistent with the State-issued possession license for the 
disposal facility.
    Likewise, the NRC consults with the applicable low-level 
radioactive waste compact commission to determine whether the 
compact will accept out-of-compact waste for disposal in a 
regional facility. To ensure that no radioactive waste imported 
into the United States becomes orphaned waste, the NRC will not 
grant an import license for waste intended for disposal unless 
it is clear from these consultations that the waste will be 
accepted at an applicable host agreement State and, where 
applicable, the low-level radioactive waste compact.
    As requested by the subcommittee, I would like to turn to 
questions regarding disposal capacity for low-level waste in 
the United States.
    In the short term, the NRC has not identified any capacity 
issues with regard to Class A disposal at EnergySolutions' 
Clive, Utah, facility. The agency as a regulator would have the 
authority to address future domestic disposal capacity issues 
if there were a public health and safety or common defense and 
security concern. There do not appear to be any such concerns 
about capacity for disposal of Class A material, which has been 
the classification for all waste import cases today.
    In reviewing import licensing applications, our review 
focuses on whether there is an appropriate facility that has 
agreed to accept the waste for management or disposal. In 
making its determination, we obtain the views of the affected 
low-level waste compact States and the executive branch.
    The pure policy question of whether, as a general matter, 
foreign waste should be permitted to take up space in U.S. 
disposal facilities would necessarily involve interests that 
are beyond the traditional role of a regulator to consider. 
These would include foreign and interstate commerce, 
entrepreneurial interests, the State's concerns and 
expectations under the Low-Level Radioactive Waste Policy Act. 
However, the NRC would be pleased to share its views on the 
effect of the proposed H.R. 515 on import and export licensing 
and contribute its technical expertise to those decision makers 
that are situated to decide the questions the draft legislation 
involves.
    In conclusion, the NRC's role in evaluating a low-level 
waste import application is a regulatory one, limited to 
ensuring that the proposed import can be accomplished safely 
and securely and in accordance with all applicable legal 
requirements.
    Mr. Chairman and members of the subcommittee, this 
concludes my statement; and I would be happy to answer your 
questions.
    [The prepared statement of Ms. Doane follows:]******** 
INSERT 1-2 ********
    Mr. Markey. Thank you, Ms. Doane, very much.
    Our second witness is Leonard Slosky, the Executive 
Director of the Rocky Mountain Low-Level Radioactive Waste 
Board. This board is responsible for implementing the Rocky 
Mountain Low-Level Radioactive Waste Compact.
    Mr. Slosky, welcome. Whenever you are ready, please begin.

                 STATEMENT OF LEONARD C. SLOSKY

    Mr. Slosky. Thank you, Mr. Chairman and members of the 
subcommittee. I appreciate the opportunity to present our views 
with you today.
    On a personal note, I would like to note that it is nice to 
be back here, as I appeared before the chairman's subcommittee 
in 1985 when the compacts were first going through Congress. So 
I have been rejuvenated since then and am glad to return.
    While I am officially representing the Rocky Mountain 
Board, I have discussed these issues with the Northwest 
Compact----
    Mr. Markey. Were you a witness on this subject at that 
time?
    Mr. Slosky. I am afraid so.
    Mr. Markey. Unbelievable. So you and I----
    Mr. Slosky. We go way back.
    Mr. Markey. We go way back. Wow, yes. I remember those 
hearings.
    Mr. Slosky. That won't count against my time?
    Mr. Markey. No, it will not count.
    Mr. Slosky. While I am officially representing the Rocky 
Mountain Compact today, I have discussed these issues with the 
Northwest Compact and they are in agreement with this 
testimony.
    The primary message that I would like to leave with you is 
the importance of the compacts exclusionary authority. That is, 
the authority of the compacts to control what waste can be 
brought into and taken out of the compact.
    In 1979, the Governors of the three States of low-level 
waste disposal facilities stated that they no longer were 
willing to carry the entire burden of disposing of the Nation's 
low-level waste. To resolve this crisis and to keep the 
existing facilities open, the States proposed to Congress that 
they be responsible for low-level waste within their regions in 
exchange for the authority to exclude waste from outside their 
regions.
    As you know, this led to the passage of the 1980 Act. The 
1985 Federal Act embodied a compromise that allowed Congress to 
consent to the original seven compacts in return for the three 
sited States and compacts agreeing to keep their disposal 
facilities open for another 7 years. The consent of Congress 
was necessary for the compacts' authorities over interstate 
commerce to be effective.
    One of the primary purposes of the 1980 and 1985 Acts was 
to achieve greater equity in low-level waste disposal. When 
compacts were drafted and during congressional consent, there 
was no expectation that foreign low-level waste would be 
disposed of in these sites. However, 10 compacts have been 
enacted as Federal law, and all contain exclusionary authority 
over outer region waste.
    It is inconceivable to me that Congress intended to 
authorize the compacts to exclude waste from States outside 
their regions but not from foreign nations. It is the 
exclusionary authority of the compacts that allows the existing 
disposal facilities to continue to operate and enables new 
facilities such as the WCS facility in Texas, which has 
recently been licensed and will soon begin construction, to 
come about.
    As no State is willing to host a disposal facility unless 
it has authority through a compact to ensure that it does not 
become the dumping ground for the Nation's or the world's low-
level waste, the States and compacts do not object to foreign 
waste being imported for treatment or recycling so long as the 
resulting waste has a viable disposal pathway and is not 
reattributed as domestic waste. However, the threat of foreign 
waste disposal places the entire compact system and the 
existing and planned low-level waste disposal sites in 
jeopardy.
    Utah would not have licensed the Clive facility if it did 
not believe that it had the ability through the compact to 
control out-of-region waste. Under the Northwest Compact, no 
facility located in a member State may accept out-of-region 
waste without prior approval of an arrangement by the Compact 
Committee. The Compact Committee adopted a clarifying 
resolution that the existing arrangement does not provide 
access for foreign waste but does provide access for waste from 
throughout the United States.
    This is not a NIMBY issue. It is a matter of national 
importance. As stated by Utah in a hearing last year on similar 
legislation, the State of Utah has done its fair share and more 
in disposing of most of the Nation's low-level waste.
    In terms of the litigation that is ongoing, the status has 
been briefly reported, I would note that the amicus briefs in 
support of the appellant's position have been filed and that 
this extraordinary coalition of compacts and States is due to 
the far-reaching implications of the district court's decision. 
While the litigation began over the import of Italian waste, 
the decision is much broader and will affect every low-level 
waste compact. If the district court's decision stands, the 
compact system could be destroyed because of a very narrow 
interpretation of the compact.
    It is interesting to note that eight of the ten low-level 
waste compacts in the Nation are either defendants or amici in 
this litigation in addition to the councils, State governments, 
and the State of New Mexico.
    [The prepared statement of Mr. Slosky follows:]******** 
INSERT 1-3 ********
    Mr. Markey. Thank you very much.
    Who did you represent in 1985, Mr. Slosky?
    Mr. Slosky. I represented the Rocky Mountain Compact, also.
    Mr. Markey. That is unbelievable.
    The third witness is Val Christensen. He is the President 
of EnergySolutions, a nuclear services company headquartered in 
Salt Lake City, Utah.
    Mr. Christensen, welcome. Please begin.

                  STATEMENT OF VAL CHRISTENSEN

    Mr. Christensen. Thank you, Mr. Chairman.
    Mr. Chairman and members of the subcommittee, I am grateful 
for the opportunity to appear today to provide testimony on 
this very important issue.
    As has been mentioned, EnergySolutions is headquartered in 
Salt Lake City, Utah. We are a world leader in environmental 
cleanup and providing a wide range of technical support 
services to the nuclear industry. We also provide critical 
nonproliferation services under the Global Threat Reduction 
Initiative.
    I would like to address some of the concerns about safety, 
because that is the underlying concern when we talk about 
importing nuclear waste.
    We have been safely disposing of Class A low-level nuclear 
materials from within the U.S. and from abroad, 
internationally, for over 9 years. These materials include shoe 
covers, lab coats, cleaning cloths, paper towels, and other 
kinds of materials that are used in areas where radioactive 
materials are present.
    Class A low-level radioactive waste contains the lowest 
concentration of radiation in the low-level waste 
classification scheme. To put it in perspective, exit signs and 
smoke detectors that you find in your home have radioactive 
sources that are more radioactive than the Class A designation 
and are not allowed to be disposed of in our Clive facility.
    Both the State and Federal regulators have concluded that 
the processing and disposal of Class A low-level radioactive 
waste poses no health or safety issues. It is important to note 
for Congressman Gordon from Tennessee that no internationally 
generated waste would ever be disposed of or orphaned in 
Tennessee. We have never processed international material in 
Tennessee that was nonconforming and had to be returned to the 
generating country.
    We and others have been, as I mentioned, importing foreign 
waste for many years from countries such as Germany, the U.K., 
Mexico, Canada, and Taiwan. And I would note that the NRC has 
issued import licenses that specifically identify the Northwest 
Compact disposal site in Richland, Washington, as the final 
resting place for some of that international waste; and I can 
provide examples to you off the record. There really is no 
domestic disposal capacity issue in the United States.
    Reference was made to the GAO testimony. The GAO noted that 
Class A waste volumes have declined by two-thirds, principally 
because the DOE has completed several large cleanup projects. 
This wasn't a 1-year event. The trends are going down. Both 
commercial and Federal disposal volumes are decreasing. 
Additionally, since May of 2008, a license was issued for the 
construction of another waste disposal site in Texas.
    Although the GAO and the NRC have testified that there is a 
domestic capacity issue with respect to Class B and Class C 
waste, they have concluded that there is no Class A disposal 
capacity issue. We need to remember that the Clive facility is 
licensed to take only Class A waste.
    The final point I wish to make with respect to the capacity 
issue is that the 5 percent volunteer license amendment that we 
have presented publicly relates to 150 million cubic feet of 
remaining licensed capacity, and we have also made the 10-year 
limit publicly a part of our license amendment.
    Now, with respect to the compact litigation, the court's 
ruling is very narrow. It simply concluded that the Clive 
facility, which was never constructed or intended to be a 
compact disposal facility outside of the compact scheme, but 
the court emphasized that compacts still have the authority to 
restrict waste coming domestically or internationally into 
their compact facility. The Clive facility is simply not a 
compact facility. It is privately owned, and there are no other 
facilities like it. So the precedent that people are concerned 
about from the court's ruling simply has no application on any 
other facility.
    All compact facilities, according to the judge's ruling, 
continue to be able to exclude waste and control waste within 
the compact system. Again, there is ample disposal capacity. 
The court's ruling does not interfere with the compact system. 
It does not turn America into a dumping ground. It is hard to 
conceive that 4.3 acres in one location would turn the United 
States into the dumping ground for the world.
    We are also concerned that this bill would violate the 
spirit of the administration's policy of nuclear cooperation as 
evidenced by the U.S.-Italian joint declaration referred to 
earlier, which was signed by Secretary Chu and his Italian 
counterpart, which advances cooperation in the nuclear sector, 
including advanced waste treatment and disposal technologies. 
We believe the proposed legislation would prevent American 
companies from playing an international role in the global 
nuclear industry largely based on perceptions rather than on 
facts and sound science.
    I am happy to take any questions. Thank you.
    [The prepared statement of Mr. Christensen 
follows:]******** INSERT 1-4 ********
    Mr. Markey. Thank you, Mr. Christensen, very much.
    Now we will turned to questions from the subcommittee.
    Mr. Slosky, you are an expert on the compact system. You 
have spent your life working on it. Are you concerned that if 
Utah and the Northwest Compact are forced to take the Italian 
waste that the compact system itself would be damaged?
    Mr. Slosky. Yes, I am very much so concerned.
    Mr. Markey. Could this lead to other States refusing to 
open low-level waste disposal sites?
    Mr. Slosky. Yes, I believe it could. The ruling from the 
court----
    And let me first give you a disclaimer. I am not an 
attorney; and since it is ongoing litigation, I am not going to 
discuss the merits of the case, but I am happy to discuss its 
implications. The implication is that there could be a very 
detrimental effect on the development of any new facilities in 
the U.S. because it will be uncertain under this ruling whether 
the compacts in which those facilities would be located would 
have exclusionary authority or not.
    Mr. Markey. So this could send us back to 1980 before we 
passed the legislation out of this committee.
    Mr. Slosky. Yes, sir.
    Mr. Markey. Let me turn to you, Ms. Doane.
    Has the NRC ever denied an import application for low-level 
waste because the importation would pose an unreasonable risk 
to the common defense and security?
    Ms. Doane. No. I don't believe we have ever denied an 
application because of common defense and security concerns.
    Mr. Markey. You were listing the reasons that you could 
reject. So you have never rejected?
    Ms. Doane. We have not, no.
    Mr. Markey. Has the NRC ever denied an import application 
for low-level waste because it would pose an unreasonable risk 
to the public health and safety?
    Ms. Doane. Yes. We have returned without action 
applications that have come in where they haven't been able to 
satisfy us that public health and safety would be protected.
    Mr. Markey. Were those applications ultimately modified 
that made them acceptable? Or was it just a flat-out rejection?
    Ms. Doane. Some were modified, but others were, no, didn't 
submit them again. We raised a lot of questions, and they 
weren't resubmitted.
    Mr. Markey. So how many applications have been denied over 
the years?
    Ms. Doane. We have returned without action I would say 
maybe five or so. There might be more, but offhand that is what 
I would say.
    Mr. Markey. And how many actual denials have you ever 
issued?
    Ms. Doane. I don't believe we have actually denied them. 
Because, in those cases, that is the same effect. The return 
without action has the same effect. We return them with what 
they would have to do to put them back in, and they aren't 
returned. So if they can't meet the request that we had, we 
return them without action. So it has the exact same effect as 
a denial.
    Mr. Markey. So it is rarely used, though?
    Ms. Doane. The return without action is rarely used?
    Mr. Markey. Yes.
    Ms. Doane. It is more rare now. It was in the beginning. 
After the 1995 rule where we required licenses, it was more 
common. It is getting less common as people start to understand 
the regulations. They don't come in where they know they are 
not going to meet them.
    Mr. Markey. So if the regional compacts do not have the 
ability to say no and the NRC very rarely says no, then it is 
unlikely that there would be many instances where low-level 
nuclear waste would be blocked from coming into our country.
    Ms. Doane. The regional compacts can say no over the 
facilities that they have control. And, in fact, in one of the 
first cases that we had, the applicant was unable to show that 
Barnwell would accept the waste, and that was the reason for 
their return without action.
    Mr. Markey. Now let me go over to you, Mr. Slosky. Do you 
agree with her that it will have no impact on the compact 
States?
    Mr. Slosky. No, I do not agree with her.
    Mr. Markey. Could you expound on your answer, please?
    Mr. Slosky. Well, I think in looking at the NRC regs it is 
unclear to me what the role is of the States and compacts in 
the NRC decision making. It has a consultation provision, but 
it is not explicit in the regulations if the States and 
compacts, as in this case, comment back that the waste is not 
acceptable what the NRC does with that consultative 
information.
    Mr. Markey. The Chair's time has expired. The gentleman 
from Michigan, Mr. Upton, is recognized.
    Mr. Upton. Thank you, Mr. Chairman.
    The question that quickly comes to mind is, Mr. Slosky, how 
does the storage of only 4 acres--in this particular case, the 
Clive, Utah, has what, 640 acres, is that right, Mr. 
Christensen?
    Mr. Christensen. Yes, sir.
    Mr. Upton. How does an agreement to limit it to only 4.3 
acres undermine the compacts across the rest of the country? 
Knowing that that is it. The stop sign is up. Put it in the 
amendment. The courts have said it is oK up to this point and 
waiting for an appeal which--see what happens.
    Mr. Slosky. The reason it has large implications is the 
court's ruling goes well beyond 4 acres. The court's ruling 
undermines the fundamental authority of the compacts.
    Mr. Upton. But this is a private--I mean, this is a private 
facility, right?
    Mr. Christensen, do you want to comment on that?
    Mr. Christensen. As I mentioned, the court's ruling is 
narrow. There aren't any other facilities in the United States 
like the Clive facility, and the court went on to emphasize 
that compacts retain their authority under the Low-Level 
Radioactive Waste Policy Act to exclude waste from the compact 
facilities and to control the waste within the compact borders.
    Mr. Slosky. Can I respond?
    Mr. Upton. Sure.
    Mr. Slosky. I would just point out that the WCS facility in 
Texas that recently received a license and is about to begin 
construction is also a privately owned and privately operated 
low-level waste site but is intended to serve the Texas 
compact. But, under the court's ruling, the exclusionary 
authority of the Texas compact over that facility could also be 
brought into question.
    Mr. Upton. Mr. Christensen, do you want to respond?
    Mr. Christensen. Yes. I am a lawyer by training, so I don't 
want to get into too much technicality on this. But the WCS 
facility is a compact facility and would be controlled by the 
compact board in the State of Texas, and the court ruling would 
have no impact whatsoever on the Texas compact authority over 
the WCS facility. There is no other facility like the Clive 
facility, which is outside of the compact system.
    Mr. Upton. Thank you.
    Ms. Doane, how many waste import licenses has the NRC 
actually granted over the years?
    Ms. Doane. Fourteen.
    Mr. Markey. And you have granted the import license to 
EnergySolutions, is that right?
    Ms. Doane. Other import licenses, yes.
    Mr. Upton. And are they currently importing waste pursuant 
to that license? Were you are you aware of any violations?
    Ms. Doane. No, we are not aware of any violations.
    Mr. Upton. Mr. Christensen, does the Clive facility have 
enough capacity to meet the disposal requirements in the 
domestic nuclear industry and other customers?
    Mr. Christensen. We do. We have remaining about 140 million 
cubic feet, which for our operational purposes is adequate and 
projected to go out to about 30 years. That includes using 5 
percent of that capacity for international waste. We certainly 
have--we have other capacity that is not yet licensed that is 
accessible through the licensing process if capacity ever 
became a national issue.
    Mr. Upton. And there is no real difference, right, between 
Class A waste between different countries, right? It is, in 
essence, the same.
    Mr. Christensen. No, sir, there isn't. The NRC has 
concluded that there is no difference between Class A low-level 
waste coming from domestic sources and from international 
sources.
    Mr. Upton. And, Mr. Slosky, at least in your opinion, we 
haven't seen any violations, right, in the Clive facility. I 
mean, are you aware of any trouble that has been there at all?
    Mr. Slosky. Well, there are, on occasion, regulatory 
violations that are assessed against the company by the State 
of Utah. But, for the most part, the facility is in compliance 
with the agreement of State regulations.
    However, that is not the issue. The issue is a policy issue 
of whether it is appropriate to manage foreign nations' waste 
in this country. We know we have the technical capability. We 
know the disposal facilities can accept the waste from a 
technical standpoint. The issue is really a policy issue.
    Mr. Upton. I yield back. Thank you.
    Mr. Markey. The gentleman's time has expired.
    The Chair recognizes the gentleman from Utah, Mr. Matheson.
    Mr. Matheson. Thank you, Mr. Chairman.
    I don't know if there was ever a citing of a violation. But 
when waste went to Bear Creek and then went to the Utah 
facility and neither the State of Utah nor the Northwest 
Compact were ever made aware of it, I think that was a 
violation. Just for what that is worth.
    Mr. Christensen. Could I respond to that?
    Mr. Matheson. No, I have got only 5 minutes; and I am going 
to my questions.
    Mr. Slosky, when the compact system was being drafted and 
created in the 1980s, was there any discussion of foreign waste 
importation and storage at low-level radioactive waste 
facilities?
    Mr. Slosky. I can recall none, other than discussions with 
the Department of Defense in terms of returning to the U.S. 
U.S.-origin materials the Department of Defense utilized 
abroad.
    Mr. Matheson. And I would note that the legislation as 
drafted allows for foreign waste created at U.S. Department of 
Defense facilities overseas to return to this country. It has 
an exception for that type of waste.
    Was there any expectation that foreign waste is considered 
out-of-region waste during that discussion?
    Mr. Slosky. We always considered foreign waste to be out of 
region, yes.
    Mr. Matheson. Mr. Slosky, in your testimony, you said 
foreign waste disposal is one of the most serious threats to 
the compacts in its 25-year history. Can you explain that 
statement?
    Mr. Slosky. Yes. The whole history of the compact system, 
going back to 1980 and really to 1979, was the State's desire 
to be able to control the flow of waste to their sites. So if 
you look at South Carolina, Washington State, Nevada at the 
time we had a disposal site there, and now Utah and Texas, the 
issue is being able to control the waste that goes to those 
sites. And if we lose control of foreign waste going to those 
sites, then the system is undermined, and it is very likely 
that all of those sites in time will close to all generators.
    Mr. Matheson. We have heard about the issue of the nuclear 
cooperation agreement with Italy. What would happen if we start 
importing waste from all the countries we have nuclear 
cooperation agreements with? We have agreements with India, 
Japan, United Arab Emirates, Jordan, most of Europe, China. It 
seems to me that there is a significant volume out there if you 
start expanding it out there to all those states. Is that a 
threat to the compact system?
    Mr. Slosky. I believe it is.
    Mr. Matheson. Since the compact system was intended to 
allow States to self-manage low-level radioactive, do you think 
any State or compact would have authorized the creation of a 
new low-level radioactive waste site if the State thought it 
did not have the authority to regulate its site?
    Mr. Slosky. No, they would not. In fact, Utah has stated 
that they would have licensed Clive for low-level waste if they 
did not believe they had the authority through the compact to 
control the flow of all out-of-region waste, including foreign 
waste.
    Mr. Matheson. Mr. Slosky, EnergySolutions has told us that, 
as a result of the district court ruling in Utah earlier this 
year, the company is not regulated by the Northwest Compact 
because it is not a regional disposal facility. In your 
testimony you said the district court completely disregarded 
explicit language in the Northwest Compact that was approved by 
Congress as Federal law. Can you expand on this point?
    Mr. Slosky. Yes. The Northwest Compact does not use the 
term ``regional facility''. The Northwest Compact bars any 
facility and any of their member States from receiving low-
level waste without the approval of the compact. That language 
was disregarded, and the court reverted to the much more narrow 
definition of regional disposal facility.
    Mr. Matheson. Mr. Slosky, 2 years ago, the Utah State 
legislature moved to enact legislation. They were working on 
enacting legislation that would have removed local government 
legislative and gubernatorial approval for expansion of the 
Clive site.
    As was noted in the September, 2007, low-level radioactive 
waste management report, former Governor Huntsman threatened to 
notify the Northwest Compact to limit the volume of waste that 
can be disposed to the current levels. In response, Governor 
Huntsman and EnergySolutions reached an agreement that the 
company would withdraw its application for additional disposal 
capacity and the Governor agreed to refrain from seeking to 
limit disposal capacity at the facility. Two years later, it 
now seems, based on this court ruling, that EnergySolutions 
does not believe it is under the authority of the compact 
system. So what are your thoughts about this?
    Mr. Slosky. Well, this has been a little bit of a surprise. 
Because for, I believe, 15 or 17 years EnergySolutions has been 
operating under the compact system, appearing at the compact 
meeting, submitting reports, coming to the committee and 
requesting approval to accept waste. Then suddenly, when this 
dispute arose, EnergySolutions took the position that they are 
not actually regulated by the compact.
    Mr. Matheson. Last question, Mr. Chairman. I know my time 
is running out.
    Is this a question that they are saying, the Northwest 
Compact has the authority to regulate the disposal capacity but 
not the material which is disposed there? Is there a 
distinction they are making in that sense?
    Mr. Slosky. Well, there is a distinction between what the 
agreement states the State the Utah regulates and what the 
compact regulates. The State of Utah regulates the health and 
safety and capacity of the site. The Northwest Compact 
regulates where waste can come from to the site.
    Mr. Matheson. Thank you, Mr. Chairman. My time has expired.
    Mr. Matheson. The gentleman's time has expired.
    The gentleman from Tennessee, Mr. Gordon, is recognized.
    Mr. Gordon. Thank you, Mr. Chairman.
    Mr. Christensen, going back to your statement, you started 
off by saying that the major issue here was safety. Yet I will 
point out that no one here has raised safety as an issue. One 
major issue, though, is the capacity. We might have different 
arguments about how long it can be there, but there can be no 
argument that capacity is finite.
    Now also in your testimony you said that allowing Italian 
waste to be dumped in the U.S. would violate the spirit of the 
U.S.-Italian joint declaration concerning industrial and 
commercial cooperation in the nuclear energy section.
    Let me point out that the United States has a similar 
agreement with 40 other States. So by inference then you are 
saying that we would break our agreement in the spirit with 39 
other countries. So, to me, that does two things: One, it opens 
a big door for those countries to ship their radioactive waste 
here; and, secondly, it sends a message to them that they don't 
have to be responsible, that they can build whatever they want 
and not look at taking care of it.
    So here are my questions for you: Does EnergySolutions have 
an enforceable contract with the Italians to dispose of the 
waste or suffer damages regardless of whether it gets a license 
from the NRC?
    Mr. Christensen. No.
    Mr. Gordon. Hmm. You say you are a lawyer, right?
    Mr. Christensen. I am.
    Mr. Gordon. Are you a lawyer of the company?
    Mr. Christensen. I was formerly general counsel of the 
company and am currently president of the company.
    Mr. Gordon. So were you general counsel on June 19?
    Mr. Christensen. Yes.
    Mr. Gordon. All right. I am trying to understand this.
    In a formal submission to the NRC on June 19, 2009, in 
response to the NRC's May 20, 2009, order for comment on how to 
proceed on your license application, EnergySolutions stated--
and I assume this is what you wrote--EnergySolutions stated 
that a delay in issuing this license--and I quote--would cause 
EnergySolutions substantial economic harm because it is unable 
to perform work under its contracts for waste without the 
requested license.
    Now can you sort of help me on this?
    Mr. Christensen. Well, your earlier question was whether we 
would be exposed to damages----
    Mr. Gordon. No, my question was very specific. My question 
was this: Does EnergySolutions have an enforceable contract 
with the Italians to dispose of its waste or suffer damages 
regardless of whether it gets a license from the NRC? That was 
my question. Your answer was, as I recall, no.
    Mr. Christensen. That is correct. We don't have a contract 
concluded with the Italian Government or the Italian sources 
that would expose us to damages if it weren't fulfilled.
    Mr. Gordon. Then why did you write to the NRC that if you 
did not get that license you would, and I quote, would cause 
EnergySolutions substantial economic harm because it is unable 
to perform under its contract for the waste without the 
requested license. Page 8 on June 19, 2009, submission to the 
NRC.
    Mr. Christensen. I would have to go back and look at it, 
but we would suffer economic harm by not being able to fulfill 
contracts that we are in the process of negotiating. We don't 
have signed final contracts----
    Mr. Gordon. OK. So just help me here. Help me here. This is 
what you wrote to the NRC, a Federal agency, that if you did 
not get the license you would cause EnergySolutions substantial 
economic harm because it is unable to perform work under its 
contracts for this waste without the requested license.
    Mr. Christensen. That is right.
    Mr. Gordon. So did you have any contracts on June the 19th?
    Mr. Christensen. We didn't have any final, binding 
contracts.
    Mr. Gordon. Then why would you tell a Federal agency--this 
is what he wrote to you. Were would you write to this lady in a 
Federal capacity that you did have contracts?
    Mr. Christensen. Because contract negotiations were under 
way, and the contracts we are referring to are the potential 
contracts with the Italian Government which we would not be 
able to secure or perform without the license.
    Mr. Gordon. Well, I will let that go, but NRC may not.
    Now, Mr. Slosky, let me ask you something. Is it true that 
when EnergySolutions said they were going to bring this Italian 
waste into Utah that the Governor said no and then 
EnergySolutions sued the State?
    Mr. Slosky. Actually, what transpired is that the Governor 
of Utah instructed his member on the Northwest Compact to vote 
against bringing the waste in; and since Utah is the host State 
they have essentially a veto power over the compact's agreement 
to bring any waste in.
    Mr. Gordon. So EnergySolutions sued them to be able to do 
this?
    Mr. Slosky. Yes. Actually, shortly before the meeting in 
the Northwest Compact, EnergySolutions filed suit in Federal 
District Court.
    Mr. Gordon. And, Ms. Doane, if I could, is it proper to 
summarize your testimony or portions of your testimony by 
saying that it really is a policy issue of whether radioactive 
waste should be brought into this country or not?
    This is not NRC. You don't have the authority other than on 
the safety issues to say whether it can come in or not. So if 
we are going to allow the United States to be the only country 
in the world that would accept radioactive waste from other 
nations then a policy decision has to be made by the Congress.
    Ms. Doane. That is right.
    Mr. Gordon. Thank you.
    Mr. Markey. That completes the first round of questions 
from the subcommittee. Are there members seeking recognition 
for the purpose of asking questions on a second round?
    The gentleman from Michigan.
    Mr. Upton. Let me just ask unanimous consent. We were 
originally going to have votes today, and they cancelled them 
yesterday afternoon. So that is one of the reasons there are 
only four of us here. I might just ask that all members of the 
subcommittee may have the opportunity to submit written 
questions within the next week or so and if you could respond 
in a timely basis. I am not sure what the chairman----
    Mr. Markey. Without objection, so ordered.
    Mr. Upton. Thank you.
    Mr. Markey. Other questions?
    The gentleman from Utah is recognized.
    Mr. Matheson. I have just got a couple more questions I 
didn't get to ask.
    Ms. Doane, I wanted to ask--one of the arguments made by 
EnergySolutions is the NRC has already issued import licenses 
to other companies and materials have been imported for several 
years. Has the NRC ever previously approved a license to allow 
for anything close to 20,000 tons of waste from a foreign 
country?
    Ms. Doane. No. Not this volume of ultimate disposal, no.
    Mr. Matheson. I saw the table you included with your 
testimony at the end of your testimony which lays out the 
volumes of what have been allowed to come into this country. I 
see five where the waste was ultimately disposed in this 
country. All the rest have been processed here and then 
returned back to the originating country; and all of them are 
quite small, from my view, in terms of the volume. Is that a 
fair statement?
    Ms. Doane. The ultimate disposal volume, right.
    Mr. Matheson. Last year when you testified before this 
committee, I expressed a concern about the lack of regulatory 
accountability for foreign-generated waste. At the time, you 
indicated that the NRC does not currently have the authority to 
prohibit the importation of nuclear waste, as you just had the 
discussion with Mr. Gordon. Or you weren't here. It was----
    Ms. Doane. Can I clarify that for the record?
    Mr. Matheson. Sure.
    Ms. Doane. We absolutely have the authority to reject waste 
that would pose a health and safety issue, a common defense and 
security issue.
    Mr. Matheson. Yes, that is a correct statement. The 
criteria you use to evaluate it are not whether or not it is 
foreign waste or not; it is the issues you----
    Ms. Doane. That is right.
    Mr. Matheson. Thank you.
    We have also heard that the company believes that neither 
the State of Utah nor the Northwest Compact has the right to 
prohibit this material from coming into the United States, and 
you still believe you lack the authority to prohibit the waste 
from coming into the United States based on simply where it 
comes from.
    Ms. Doane. That is right. Just based on its foreignness, 
that is right.
    Mr. Matheson. So it seems to me that no one has the 
authority to make the call on whether or not foreign waste 
should come from a regulatory standpoint. It is really--to 
reiterate what Mr. Gordon said, this is a policy issue about 
whether or not this country is going to allow this to happen.
    Ms. Doane. Well, I won't speak for Mr. Slosky. I think the 
compacts believe they do have the authority to keep waste out 
because of its foreignness. So I won't speak to him. And if 
they have control of a facility, as happened with the Barnwell 
case, the very first case, and they say waste can't come in, we 
would not have the third criterion met, which is that an 
appropriate facility has agreed to accept the waste.
    Mr. Matheson. Has the NRC done any additional work to 
determine national disposal capacity for low-level radioactive 
waste?
    Ms. Doane. Not the--we haven't actually done the studies, 
no.
    Mr. Matheson. Is that an agenda item that is being 
considered at NRC? Would it make sense to make a decision about 
what our capacity is in terms of approving applications for 
waste?
    Ms. Doane. I probably shouldn't just hypothesize about 
that, but where capacity issues could raise a health and safety 
concern, then, yes, we look into them. But we look to the 
proper authorities that also make those decisions.
    Mr. Matheson. OK. Thanks, Mr. Chairman. I yield back.
    Mr. Upton. Can I ask one follow-up question?
    Mr. Markey. The gentleman is recognized for that purpose.
    Mr. Upton. Since you all approved the import license--
right?
    Ms. Doane. What import license?
    Mr. Upton. I mean, you all gave the license to the facility 
in Clive. Do you actually check with the State?
    Ms. Doane. Well, we haven't approved the Italian. I know 
that is not what you mean. But we haven't approved the Italian 
import license. We have approved licenses in the past; and, 
yes, we do check -
    Mr. Upton. And you do check-- that is part of the 
checklist----
    Ms. Doane. Absolutely. The host States, the compacts, yes. 
And our process is very public. We also publish all materials, 
and we do get comments from other compacts that might be also 
interested. We take all of that into consideration.
    Mr. Upton. Thank you.
    Mr. Markey. Are there other questions?
    The gentleman from Tennessee.
    Mr. Gordon. Just one last quick question to Ms. Doane.
    Does EnergySolutions currently have pending import license 
applications to bring radioactive waste in from Brazil and 
Mexico?
    Ms. Doane. There are two pending applications for Brazil 
and Mexico. I know that one is of them is energy. The material 
will ultimately go to the Clive, Utah, site. I am not sure they 
are their applications.
    Mr. Gordon. So that Mexico and Brazil have also asked to be 
able to export to us some radioactive waste. It would wind up 
in Utah; is that correct?
    Ms. Doane. Applicants in the United States have applied to 
get waste from, yes, Brazil and Mexico to ultimately have some 
material disposed of in Clive, Utah.
    Mr. Gordon. Thank you.
    Mr. Markey. The gentleman's time has expired.
    Other questions from members?
    What we will do then is give each one of the witnesses 1 
minute to summarize their position to the committee. In reverse 
order from the original statements, we will begin with you, Mr. 
Christensen.
    Mr. Christensen. Thank you, Mr. Chairman.
    Just to set the record straight with respect to the 
contract issue, the company had signed memoranda of 
understanding, which I don't--as a lawyer don't consider to be 
the final definitive agreement on these--on the Italian 
arrangement. There is no license and there is no contract at 
this point in time, obviously; and I just---
    Mr. Gordon. So are you going to amend your submission to 
the NRC?
    Mr. Christensen. No. The submission to the NRC is accurate.
    The only other comment I want to make is that we have a 
legitimate business that is lawful, it is highly regulated. We 
deal with these materials safely, and it is critical to the 
nuclear industry in the United States. The opportunity to 
handle a small amount of international waste gives us an 
opportunity to play on a global stage.
    What is at stake here is not just Italian waste to be 
disposed of in Utah. Helping them solve a small part of their 
Class A low-level waste issues allows us to deal with site 
selection and development in Italy and a lot of other technical 
areas. We are competing with other foreign companies to 
participate as a leader from America in the nuclear 
renaissance. And we have as our secret sauce, in attempting to 
compete with other world competitors, the ability to dispose of 
a small amount of their waste, and it is limited.
    Now, the 4.3 acres in the private site doesn't bar all of 
the other compact facilities from excluding waste from their 
facilities. So there is a finite amount that would come into 
the United States. All the other compacts can exclude foreign 
waste under the court's ruling and under the compact law.
    Mr. Markey. The gentleman's time has expired.
    Mr. Slosky.
    Mr. Slosky. Thank you.
    There is one issue that came up that I would like to 
clarify. The implication was brought up that the compacts 
believe that they have the authority to control waste coming 
into the United States. That is not correct. The decision of 
whether waste comes into the United States is a Federal 
decision currently resting with the NRC. The compacts have the 
authority to control whether it comes into their compact 
regions. That is, I think, a very important distinction.
    The other issue that we have touched on but may not have 
been adequately focused on, and that is that there has been 
foreign waste brought in in the past. It has been recycled or 
processed, which is just fine, but the States are very 
concerned, the compacts are concerned in cases where that 
foreign waste gets reattributed and disposed of as domestic 
waste and its foreign origin gets obscured.
    The last thing I would like to say is that eight of the ten 
low-level waste compacts representing 34 States are involved in 
the EnergySolutions litigation, and I think that is ample proof 
of the potential broad-reaching implications of that lawsuit.
    Mr. Markey. Thank you, Mr. Slosky.
    And Ms. Doane.
    Ms. Doane. Thank you again for the opportunity to speak to 
you this morning.
    I think I just want to make sure that it is clear that the 
third criterion that we consider about whether an appropriate 
facility has agreed to take the waste considers the views of 
the compacts and where that decision is left to rest and there 
is not a facility--so not like the case here where there is 
review going on--we would take that into consideration and 
would not permit the waste to come in, and we have done so in 
the past.
    We do understand the roles and actually have a very good 
working relationship with both the States and the compacts. We 
depend on their advice on issues that they have--their 
responsibility--they are responsible for. We depend on their 
advice, and we do seek that out.
    And I also want to point out we have a very public process 
that takes a very deliberate and very considerate view of all 
the technical, safety, common defense, and security issues that 
would come up with these waste imports.
    Mr. Markey. Thank you, Ms. Doane.
    We thank each of our witnesses very much.
    I ask that the members be given 5 business days to submit 
any questions for the record.
    Without objection, that will be ordered.
    Again, we thank you. We welcome you back, Mr. Slosky. Good 
to see you again. See you in 25 more years, and I will still be 
here.
    This hearing is adjourned. Thank you.
    [Whereupon, at 10:45 a.m., the subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]

                                 
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